(CN) — A Ninth Circuit judge laid out a catch-22 scenario Monday for five Verizon and AT&T customers fighting to revive a class action over what they claim is the government’s unlawful use of mass surveillance programs to spy on American citizens.
If the government did not collect plaintiffs’ phone and internet records, their case must be dismissed for lack of standing. If the government did unlawfully intercept their communications, the case must also be dismissed because merely disclosing that fact would reveal sensitive national security secrets.
“That’s exactly the state secret that may not want to be revealed — the extent and the ability of the national government to surveil people in a mass way because then the persons who don’t want to be surveilled will know what methods of electronic communication they should not use,” U.S. Circuit Judge Carlos Bea, a George W. Bush appointee, said during a hearing Monday on an appeal in a 12-year-old lawsuit over the National Security Agency’s spying programs.
Lead plaintiff Carolyn Jewel sued the NSA in 2008, long before NSA contractor Edward Snowden leaked a trove of classified records unveiling details about the NSA’s multiple warrantless spying programs in 2013.
The lawsuit claims the NSA used three programs to spy on American citizens in a way that violates the First and Fourth Amendments, the Wiretap Act, Stored Communications Act and Foreign Intelligence Surveillance Act. Those programs include the bulk collection of cellphone and landline records from phone companies, mass interception and searching of Americans’ emails and other internet communications, and collection of metadata from internet communications, such as timestamps and “to” and “from” data from emails.
The government has acknowledged the existence of those programs. It says the bulk collection of internet communications and metadata was discontinued and replaced with more targeted collection of data based on specific selection terms. The bulk collection of phone records continues. The government also maintains that revealing operational details for those programs, such as which telecom giants participated in them, would harm national security.
In April 2019, U.S. District Judge Jeffery White issued summary judgment in favor of the NSA. He concluded that simply revealing whether classified evidence shows the NSA collected the plaintiffs’ data would by itself threaten national security.
During an appeals court hearing Monday, plaintiffs’ attorney Richard Wiebe argued that a 2019 Ninth Circuit ruling forbids dismissing a case just because the government invokes its state secrets privilege. In Fazaga v. FBI, the Ninth Circuit reversed the dismissal of a lawsuit over mosque surveillance, finding the court should have reviewed classified evidence behind closed doors instead of dismissing constitutional claims based on the government’s assertion of state secrets privilege.
The government has until late December to appeal that decision to the Supreme Court.
In that case, the Ninth Circuit ruled that courts should use the procedures described in Section 1806(f) of the Foreign Intelligence Surveillance Act of 1978 to review classified evidence behind closed doors to determine if a plaintiff has been subjected to unlawful surveillance.
“That’s exactly what Congress intended to happen,” Wiebe argued during the video conference hearing Monday.
Drawing a distinction, U.S. Justice Department lawyer Joseph Busa countered that the FISA procedure for reviewing classified records only applies to the merits of a case, not when evaluating whether or not plaintiffs have standing to sue.
“[Section] 1806 by its plain text doesn’t apply to standing,” Busa said. “It only applies to the legality of surveillance.”
The plaintiffs also insist that publicly available evidence proves their communications were intercepted. The public evidence includes a former AT&T technician detailing how the telecom giant routed internet traffic to a secret NSA-controlled room at an AT&T facility in San Francisco in 2003, a 2009 NSA inspector general’s draft report naming telecom giants compelled to comply with surveillance programs, and a letter the government accidentally disclosed to The New York Times in 2015 identifying AT&T, Verizon and Sprint as companies that gave the NSA access to phone records.
Judge White refused to consider that evidence, finding it was based on speculation, insufficient facts or data, and records that the government refused to authenticate.
On Monday, Judge Bea questioned how a letter inadvertently disclosed to The New York Times through a public records request in 2015 proves that AT&T and Verizon complied with the NSA’s demands for access to records. The document describes a primary order and states that no production of records is required without a secondary order.
“Is there any evidence of the secondary order?” Bea asked.
“We don’t have that secondary order,” Wiebe replied.
The government maintains that simply revealing whether a plaintiff’s communications or data was illegally intercepted would allow foreign adversaries to determine, based on a plaintiff’s allegations, whether certain phone or internet companies are subject to U.S. surveillance.
U.S. Circuit Judge Margaret McKeown, a Bill Clinton appointee, asked how that information is not already available in the public domain.
“We have the government acknowledging these programs publicly,” McKeown said. “One of the programs is ongoing. All of that is public, is it not?”
Busa replied that although the government has acknowledged those programs existed, it has not revealed “all operational details including which service providers may or may not have participated in each program and the specific details about how each program was carried out.”
The government released a Foreign Intelligence Surveillance Court order from 2013 that required Verizon Business Network Services to provide phone records to the NSA.
McKeown asked how that order combined with public acknowledgment of the programs are insufficient to establish standing to sue.
Citing the D.C. Circuit’s 2014 ruling in Obama v. Klayman, Busa said the court cannot speculate based on public knowledge of spying programs and the size of a telecom firm’s customer base that a company like Verizon must have provided data to the NSA.
“Every plaintiff has to have evidence they were subject to the alleged program,” Busa said.
In his final pitch to the panel, civil liberties attorney Wiebe argued that accepting the NSA’s position in this case would trap Americans in a perpetual catch-22, never being able to hold the government accountable for illegally spying on its citizens.
“The district court’s state secrets dismissal leaves citizens powerless to challenge any unlawful mass surveillance programs because those programs always involve secrets,” Wiebe said.
U.S. Circuit Judge Ronald Gould, also a Clinton appointee, joined Bea and McKeown on the panel.